State ex rel. Hicks v. Clermont Cnty. Bd. of Comm'rs
| Citation | 171 N.E.3d 358 |
| Decision Date | 29 March 2021 |
| Docket Number | NO. CA2020-06-032,CA2020-06-032 |
| Court | Ohio Court of Appeals |
| Parties | STATE of Ohio EX REL. Christopher HICKS, Appellee, v. CLERMONT COUNTY BOARD OF COMMISSIONERS, Appellant. |
Barron Peck Bennie & Schlemmer Co., LPA, Matthew Miller-Novak, 3074 Madison Road, Cincinnati, Ohio 45209, for appellee.
Kinsley Law Office, Jennifer M. Kinsley, P.O. Box 19478, Cincinnati, Ohio 45219, for appellee.
Godbey Law LLC, Robert L. Thompson, Mark E. Godbey, 708 Walnut Street, Suite 600, Cincinnati, Ohio 45202, for appellee.
Isaac Wiles Burkholder & Teetor, LLC, Mark Landes, Aaron M. Glasgow, 2 Miranova Place, 7th Floor, Columbus, Ohio 43215, for appellant.
{¶ 1} The Board of Clermont County Commissioners (BCC) appeals from decisions of the Clermont County Common Pleas Court in favor of relator, Christopher Hicks (Hicks), which found that BCC violated the Open Meetings Act and awarded Hicks attorney fees. For the reasons described below, this court affirms the decisions.
{¶ 2} In January 2018, Hicks, a Clermont County resident, filed a complaint alleging that BCC failed to comply with the Open Meetings Act ("OMA"), R.C. 121.22. Hicks alleged that BCC failed to maintain accurate meeting minutes, held a private quorum discussion of public business, and, on multiple occasions in 2017, improperly conducted executive sessions.
{¶ 3} The parties engaged in discovery and then filed cross-motions for summary judgment. The summary judgment record included the depositions of the three incumbent county commissioners, the county administrator, BCC's clerk, and BCC's responses to written discovery requests. The summary judgment record established the following undisputed facts.
{¶ 4} BCC is composed of three elected commissioners, which at all times pertinent, were Edwin Humphrey, David Uible, and David Painter. BCC's duties include making decisions regarding the hiring, firing, compensation, and discipline of Clermont County employees.
{¶ 5} Based upon the recommendation of the county administrator, BCC frequently convenes executive sessions, which exclude the general public, to discuss personnel matters. The agenda for an executive session is prepared by BCC's clerk, who does not know the identity of the employees to be discussed when she prepares the agenda. Neither do the commissioners have foreknowledge of the employee or employees to be discussed at executive session.
{¶ 6} Those typically in attendance at executive sessions where personnel matters are discussed include the commissioners, the county administrator, the assistant county administrator, the department head from the department of the employee to be discussed, and someone from the county prosecutor's office. The meeting attendees do not take official minutes of the executive sessions.
{¶ 7} As reflected in its public session board minutes, BCC convened executive sessions on February 22, 2017, February 27, 2017, March 1, 2017, March 22, 2017, March 27, 2017, April 19, 2017, June 7, 2017, August 2, 2017, and August 9, 2017 (hereinafter collectively referred to as the "Nine Executive Sessions"). In each of those instances, the public minutes reflect that BCC adopted a motion authorizing an executive session to consider "the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee * * *" as provided by R.C. 121.22(G)(1). The motions for the February 22, 2017 and March 1, 2017 executive sessions also provided that the executive session was for the purpose of considering pending or imminent litigation, as provided by R.C. 121.22(G)(3).
{¶ 8} There were multiple occasions in 2017 where BCC entered executive session for less than the multiple reasons authorizing the Nine Executive Sessions, e.g., to only consider the discipline of a public employee, to only consider the dismissal of a public employee, to only consider the compensation of a public employee, and so forth. However, it was common practice for BCC to convene an executive session based upon a motion including the same multiple purposes included in the motions authorizing the Nine Executive Sessions.
{¶ 9} Commissioner Uible explained that the practice of including multiple R.C. 121.22(G)(1) purposes in the motion authorizing an executive session was generally utilized because all of those purposes were relevant to the employees being reviewed. Commissioner Uible testified that he would assume that the commissioners were discussing more than one employee when dismissal, discipline, promotion, and demotion were all considered in one executive session, as BCC would not simultaneously promote and dismiss or demote an individual employee. Commissioner Humphrey testified that when BCC moved into executive session and listed more than one reason for doing so, it was because the commissioners "could" have discussed multiple employees in that session. Commissioner Painter testified that in a single session, BCC might discuss three or four employees, and that "almost every time" more than one employee was involved.
{¶ 10} Regarding the Nine Executive Sessions, Commissioner Uible testified that he assumed the commissioners discussed more than one employee during the February 22, 2017 executive session. However, he did not claim that they "discussed every single one of these things" [included in the authorizing motion] in the executive session." He could not recall what the commissioners discussed concerning pending or imminent litigation. He could not recall anything discussed during that session. Similarly, the other two commissioners could not recall the employee or employees discussed during the February 22, 2017 session. Commissioner Painter could not recall whether there were threats of litigation or pending suits. Then assistant county administrator Eigel could not recall which employee or employees were discussed and was not sure whether he even attended the session.1 Neither the commissioners nor its administrative staff could relate who or what was discussed during the February 27, 2017, March 22, 2017, March 27, 2017, April 19, 2017, June 7, 2017, August 2, 2017, and August 9, 2017 executive sessions.
{¶ 11} During the March 1, 2017 executive session, the commissioners discussed county employee D.R. However, Commissioner Uible could not recall what was discussed with respect to D.R. He did not believe they could have discussed both promoting and demoting D.R. He did not recall any other employees who were discussed during this session. Commissioner Painter could not recall what was discussed concerning D.R. He believed that promotion or demotion could have been discussed if D.R. was being moved into a different position and then some other employee would be promoted or demoted to take D.R.’s position. Humphrey wrote D.R.’s name and "fitness for duty" in personal notes he kept during executive sessions. Humphrey's notes also indicated "conveyance fees," which he testified related to ongoing litigation.
{¶ 12} Finally, Hicks did not know what transpired during any of BCC's executive sessions.
{¶ 13} Upon consideration of the parties’ motions for summary judgment, the trial court rendered summary judgment in BCC's favor upon Hicks’ claim that BCC had failed to maintain proper meeting minutes. However, the trial court granted summary judgment in Hicks’ favor upon his improper executive sessions claim based upon the Nine Executive Sessions. Finally, the trial court found that genuine issues of material fact remained as to Hicks’ claim that BCC had conducted an improper private discussion of public business. Later, Hicks agreed to vacate trial upon this remaining unresolved issue.
{¶ 14} In rendering summary judgment in Hicks’ favor as to the Nine Executive Sessions, the trial court applied the burden-shifting framework for OMA claims set forth by this court in State ex rel. Hardin v. Clermont Cty. Bd. of Elections , 12th Dist. Clermont, 2012-Ohio-2569, 972 N.E.2d 115. The trial court found that Hicks met his initial burden of production under Hardin by submitting evidence that the Nine Executive Sessions were meetings from which the public was excluded. The trial court then noted that the burden shifted to BCC to come forward with evidence that the challenged meetings fell within one of the statutory exceptions to public meetings. The trial court found that for almost every challenged executive session, neither the commissioners nor Eigel could recall who or what was actually discussed during the executive session. Instead, the commissioners spoke generically about what "typically, usually, or almost always" happens during executive sessions when they consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of one or more public employees. With regard to the March 1, 2017 executive session, the court found that although BCC was able to identify D.R. as an employee discussed during that session, the reasons set forth for entering executive session were contradictory to discussing a single employee, that is, they would not be discussing both promoting and demoting a single employee.
{¶ 15} Accordingly, the court found that BCC had not met its burden of producing evidence that the Nine Executive Sessions fell within the statutory exceptions to public meetings, that BCC's conduct therefore violated R.C. 121.22(G)(1), and that that summary judgment should be granted in Hicks’ favor.
{¶ 16} Following the summary judgment decision, Hicks applied for statutory attorney fees. BCC opposed the application, contesting the reasonableness of the hourly rates charged by Hicks’ attorneys, as well as the time they spent on the case. BCC also contested block-billed time entries on attorney billing records and argued that Hicks’ attorney fee award should be reduced by two thirds because he was successful on only one of three OMA claims.
{¶ 17}...
To continue reading
Request your trial
-
State ex rel. Hicks v. Clermont Cnty. Bd. of Comm'rs
...the burden-shifting framework that it established in Hardin, the Twelfth District affirmed the trial court's judgment. 2021-Ohio-998, 171 N.E.3d 358, ¶ 25-40, 46. In Hardin, the Twelfth District created a burden-shifting framework for claims alleging violations of the OMA. The court require......